By the test adopted by the prevailing opinion, I think that Pizzo was as matter of law hired by Babcock Co. as their servant to deliver the coal in question. If he had been called in by them for an occasional job the case would have been different, but he was, and for three months prior to the accident had been, one of their teamsters regularly employed as such. He was in no sense an independent truckman serving the public generally.
No exception presents to this court the question of Babcock Co.'s primary liability which was obscurely submitted to the jury but was, it would seem, the basis of their verdict. Accordingly I vote to affirm the judgment appealed from, with costs.
HISCOCK, Ch. J., COLLIN, McLAUGHLIN, ANDREWS and ELKUS, JJ., concur; POUND, J., reads dissenting memorandum.
Judgments reversed, etc. *Page 119